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Kansas appealing in sex offender registry ruling

7/19/2013

WICHITA, Kan. (AP) -- Kansas will appeal a state district court judge's decision that orders a child molester's name to be removed from its offender registry after finding the registration laws violate the U.S. Constitution, the state's top prosecutor said Thursday.

At issue is Tuesday's decision in which Shawnee County Judge Larry Hendricks found that Kansas law ostracizes offenders and requires them to remain registered longer than necessary. But, his ruling applied only to the 50-year-old Lenexa man who sued the Kansas Bureau of Investigation and Johnson County sheriff's office seeking to end his registration requirement.

"After carefully reviewing the district court's ruling, we do not think it is legally correct," Kansas Attorney General Derek Schmidt said Thursday in a written statement.

Kirk Ridgway, the attorney representing the Johnson County sheriff's office, said one of their concerns when considering whether to appeal was that any Kansas Supreme Court ruling would apply to others currently on the registry.

Schmidt said the state would fight for the integrity of the Kansas Offender Registration Act, as well as for continued compliance with the federal Adam Walsh Act, which is designed to protect the public, particularly children, from sex offenders.

"Having complete and accurate information about registered sex offenders available to the public through the online registry is a central public safety purpose of the federal law, which Kansas has implemented, and the district court's ruling runs counter to that purpose," Schmidt said.

The Kansas offender registry law requires sex, drug and violent offenders to register with law enforcement. It applies retroactively and offenders must register for 15 years to life, depending on the severity of the crime. Nearly 11,600 persons are on the registry, according to the KBI -- 7,417 for sex crimes, 2,283 for drug offenses and 1,899 for violent crimes.

Kansas will also appeal the lower court's decision that allowed the plaintiff to proceed anonymously in the case. The plaintiff's attorney, Chris Joseph, has said his client is fearful of retribution if he is identified.

"The public has a right to know when a convicted sex offender challenges the very law that is designed to protect the public," Schmidt said. "This cloak of anonymity does not serve the public interest or advance public safety."

Joseph said in an email Thursday that he welcomed an appeal, but was concerned about the attorney general's request to reveal his client's identity.

"The only purpose for doing so, that I can think of, is to attempt to intimidate him and discourage his effort to protect his constitutional rights," Joseph said. "I am disheartened that our Attorney General would resort to such tactics."

The plaintiff pleaded guilty in 2003 to having taken indecent liberties with a child/touching in Johnson County. At the time, he was required to remain on the registry for 10 years. But in 2011, the Legislature amended the law, extending the length of time offenders must be registered to 25 years.

The state told the plaintiff it applied retroactively and that he had to remain registered until 2028.

His lawsuit argued the law is unconstitutional because it was applied retroactively, violating the "ex post facto" clause of the U.S. Constitution.

Attorney, who represented the plaintiff, argued several state supreme courts have found provisions in registry laws as excessive in relation to public safety objectives. He cited registry provisions struck down by state supreme courts in Alaska, Indiana, and Ohio.

The U.S. Supreme Court rejected in 2003 a similar retroactive challenge to Alaska's registration law, finding at the time it was constitutional as a civil regulatory scheme. But the nation's highest court also said that if a retroactive law is punitive, then it would be unconstitutional.

Hendricks said the 2011 Kansas law was effectively punitive, noting its requirements have become increasingly severe and social media creates a virtual forum for "shaming."